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Trainor v. Atlantic Cape Fisheries

June 28, 2007


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff commenced this action on May 12, 2005, against Defendants Atlantic Cape Fisheries, Inc. ("Atlantic Cape") and Marine Management, Inc. ("MM"). Plaintiff alleges that Defendants were negligent under the Jones Act, 46 U.S.C. § 688, et. seq. Plaintiff also alleges unseaworthiness of a ship owned and operated by Defendants, and asks for maintenance and cure pursuant to general maritime law. This Court has jurisdiction pursuant to 28 U.S.C. § 1333.

Defendants move for summary judgment based on a release executed by Plaintiff. For the reasons set forth below, the Motion for Summary Judgment will be denied.


This case arises out of two incidents that allegedly occurred on February 28, 2004, and April 10, 2004, in which Plaintiff injured his back aboard the F/V Master Joel on navigable water. (Compl. ¶¶ 4-19). It is undisputed that Defendant MM owned F/V Master Joel, and that Defendant Atlantic Cape entered into an agreement to manage and to operate the vessel. (Df. Ex. C, Cohen Aff., ¶ 4).

The present summary judgment motion focuses exclusively on the validity of a release executed by Plaintiff on September 3, 2004. (Df. Ex. 1). The circumstances surrounding the execution of this release are heavily disputed.

The following is Plaintiff's account of the events. Plaintiff initially injured his back in February, 2004, while working on the F/V Master Joel. He checked into the emergency room a few days later, but did not report this incident to Defendant Atlantic Cape out of fear that he would be fired. (Df. Ex. A, A. Trainor Aff., ¶ 2). In April, 2004, Plaintiff injured his back again aboard F/V Master Joel, and again he sought medical treatment. When the doctor informed him that his injury required an MRI of his spine, however, he contacted Daniel Cohen, President and owner of Defendant Atlantic Cape. (Id., ¶¶ 3-4). Mr. Cohen insisted that he seek treatment from Dr. Zerbo, Mr. Cohen's osteopathic doctor. (Id., ¶ 5).

Upon learning Plaintiff's injury in April, 2004, Mr. Cohen questioned him about it and typed a statement for him to sign. Plaintiff did not discuss his February injury with Mr. Cohen. Mr. Cohen told Plaintiff and his wife that as long as Plaintiff did not retain an attorney, Atlantic Cape would pay for his medical care and provide maintenance.*fn1 (A. Trainor Aff., ¶ 5). Plaintiff received a check for $1,000 after that meeting and was told that a maintenance check will be provided to him every Friday. (Id.).

After the initial $1,000, Plaintiff received a weekly maintenance check of $500. (A. Trainor Aff., ¶ 7). Plaintiff complained that this amount was insufficient, and Mr. Cohen increased the amount to $600 per week.

Dr. Zerbo performed spinal surgery on Plaintiff in June, 2004. Prior to surgery, Plaintiff wished to obtain a second opinion, but Mr. Cohen dissuaded him and told him that Dr. Zerbo was one of the best doctors in the area.

Following his surgery, Plaintiff felt that the weekly maintenance was insufficient for living expenses and that $600 per week was less than what the working crew of the F/V Mater Joel was making. He called Mr. Prestogiovanni and tried to obtain more money for maintenance, but Mr. Prestogiovanni refused. (A. Trainor Aff., ¶ 9).

In early July of 2004, Sheila Trainor, Plaintiff's wife, contacted attorney David Anderson, and Plaintiff retained Mr. Anderson's service in the second week of July. (A. Trainor Aff., ¶ 10). A week after he retained Mr. Anderson, Mr. Cohen refused to pay maintenance unless Plaintiff terminated Mr. Anderson. Plaintiff immediately terminated Mr. Anderson, and his maintenance checks resumed. (Id., ¶¶ 10-12).

In early September of 2004, Dr. Zerbo told Plaintiff that his back was recovered and that he would have no problems resuming his work in commercial fishing. Dr. Zerbo provided Plaintiff with a medical note to that effect. (A. Trainor Aff., ¶ 13). Plaintiff and his wife took the note to Mr. Cohen and asked to go back to work. Mr. Cohen told him that he could return to his job and receive his former wage, minus maintenance payments, on the condition that he signs a release. (Id.).

The following morning, Plaintiff and his wife returned to Mr. Cohen's office. Mr. Cohen told them that Plaintiff was entitled to approximately $6,000, which was 2/3 of the boat share while he was out of work minus the maintenance payments. Mr. Cohen explained that the 1/3 deduction was for taxes. (A. Trainor Aff., ΒΆ 14). Mr. Cohen told them that if he signed the release, his reemployment would be guaranteed, and that if ...

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